1961 (9) TMI 41
X X X X Extracts X X X X
X X X X Extracts X X X X
....st the order refusing to set aside the award, the Governor-General preferred to the Lahore High Court an appeal which after the setting up of the Dominions of India and Pakistan was transferred to the Circuit Bench of the East Punjab High Court at Delhi. Falshaw, J., who heard the appeal set aside the order, because in his view the dispute could not be referred to arbitration under the contract which gave rise to the dispute and "that was sufficient to invalidate the award". Against that order an appeal was preferred under cl.10 of the Letters Patent of the High Court of Lahore, which by the High Court (Punjab) Order, 1947 applied to the East Punjab High Court. Before the Appellate Bench, the Governor-General contended that the appeal under the letters Patent was prohibited by s. 39(2) of the Indian Arbitration Act. The question whether the appeal was maintainable was referred to a Full Bench of the High Court. The Full Bench opined that an appeal from the judgment of a Single Judge exercising appellate powers did lie under cl. 10 of the Letters Patent, notwithstanding the bar contained in s. 39(2) of the, Arbitration Act. After the opinion of the Full Bench was delivered, a Divisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erdict, in sub-s. (2) operates against an appeal under the Letters Patent, there has been a divergence of opinion amongst the High Courts in India. The Bombay High Court in Madhavdas v. Vithaldas I.L.R. (1952) Bom. 570., held that there is no further right of appeal under the Letters Patent when a Single Judge of the High Court disposed of an appeal under s. 39 (1) of the Arbitration Act. The same view was expressed by the Madras High Court in Radha Krishna Murthy v. Ethirajulu I.L.R. (1945) Mad. 564. In Hanuman Chamber of Commerce Ltd., Delhi v. Jassa Ram Hira Nand A.I.R. (1948) Lah. 64., and Banwari Lal Ram Dev v. The Board of Trustees, Hindu College I.L.R. (1948) E.P. 159., it was held that a right to appeal under the Letters Patent against an order passed in appeal under s. 39(1) is not restricted by s. 39(2). In the view of the Lahore and the East Punjab High Courts appeals prohibited by sub-s. (2) were second appeals, i.e., appeals under s. 100 of the Civil Procedure Code and "Intra-court appeals" such as appeals under the Letters Patent from an order of a Single Judge to a Bench of the same Court were not prohibited. The Madras High Court in a recent judgment-Mulchand Kewa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hand Daga v. Kissan Das Gridhardass (1961) 74 L.W. 408 F.B. 504 and we agree with the learned Judges that the adjective "imports a further appeal, that is, numerically second appeal". The problem to which attention must then be directed is whether the right to appeal under the Letters Patent is at all restricted by s. 39, sub-ss.(1) and(2). Clause 10 of the Letters Patent of the High Court, in so far- as it is material, provides: "'And we do further ordain that an ap. peal shall lie to the said High Court ...... from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by' a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction of one Judge of the High Court......." By this clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by el. 37 subject to the legislative power of the Governor-General in Council and also of the Governor-in- Council under the Government of India Act, 1915 and may i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s from original decrees of the Court passing the order" in s. 39 (1) does not import the concept that the appellate court must be distinct and separate from. The court passing the order or the decree. The legislature has not so enacted and the context does not warrant such an interpretation. The clause merely indicates the forum of appeal. If from the decision of a court hearing a suit or proceeding an appeal will lie to a Judge or more Judges of the same court, by virtue of s. 39 (1) the appeal will lie from the order passed under the Arbitration Act, if the order is appealable, to such Judge or Judges of that court. The argument that the right to file an appeal to the Supreme Court from orders in arbitration proceedings would be seriously restricted has in our view no substance. If an order passed in a proceeding on the original side of the High Court is appealable under s. 39 (1), an-appeal will lie to a Division Bench of the High Court and from the order passed by the Division Bench, an appeal, by the express provision contained in sub-s. (2) will lie subject to the restrictions contained in the relevant articles of the Constitution to the Supreme Court. If the order is not one....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7, 144-145.,to the following effect :- "I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring bow the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions.................. ". The court in interpreting a statute must therefore proceed without seeking to add words which are not to be found in the statu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Civil Procedure and its amending Acts. A similar view was expressed by the Madras High Court in Achaya v. Ratrandu, I.L.R. 9 Mad. 447. But the Privy Council in Hurrish Chunder Chowdry v. Kali Sundari Debia (1882) L.R. 10 I. A. 4, 17., in a very terse observation expressed a different view, in that case one Kassiswari executed a will devising a taluk in equal shares to her daughter Chundermoni and her daughter-in-law Kali Soondari. After the death of Kassiswari, the two devisees under the will sued one Hurrish Chunder for a decree for possession of the taluk. The Subordinate Judge decreed the suit and that decree was ultimately affirmed by the Privy Council in an appeal filed by the daughters of Chundermoni, and the order of the Queen-in-Council was transmitted to the High Court for execution. In the meanwhile, Chundermoni's moiety in the taluk was purchased by Hurrish Chunder. Thereafter, Kali Sundari applied in the original jurisdiction of the High Court at Calcutta for execution of the order of the Queen-in-Council. Pontifox, J., declined to execute the order, because in his view it could not be executed by one only out of the two original plaintiffs. Against that order, an appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Court. This' view was affirmed by a Full Bench of the same court in Muhammad Naim- Ul-Lah Khan v. Ihsan-Ul-Lah Khan I.L.R. (1892) 14 All. 226. The legislature in this state of affairs intervened, and in the Code of 1908 incorporated a. 4 which by the first sub- section provided: "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any, special jurisdiction or power conferred, or any special form 'of procedure prescribed, by or under any other law for the time being in force"- and enacted in s. 104(1) that an appeal shall lie from the orders set out therein and save as otherwise expressly provided, in the body of the Code or by any law for the time being in force, from no other orders. The legislature also expressly provided that "'no appeal shall lie from any order passed in appeal under this section." Section 105 was substantially in the Fame terms as s. 591 of the earlier Code. The intention of the legislature in enacting sub-s. (1) of s. 104 is clear : the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lar to s. 4 of the Code of Civil Procedure which preserves powers reserved to courts under special statutes. There is also nothing in the expression "authorised by law to hear appeals from original decrees of the Court" contained in s. 39(1) of the Arbitration Act which by implication reserves the jurisdiction under the Letters Patent to entertain an appeal against the order passed in arbitration proceedings. Therefore, in so far as Letters Patent deal with appeals against orders passed in arbitration proceedings, they must be read subject to the provisions of s. 39(1) and (2) of the Arbitration Act. Under the Code of 1908, the right to appeal under the Letters Patent was saved both by s. 4 and the clause contained in s. 104(1), but by the Arbitration Act of 1940, the jurisdiction of the Court under any other law for the time being in force is not saved; the right of appeal can therefore be exercised against orders in arbitration proceedings only under s. 39, and no appeal (except an appeal to this Court) will lie from an appellate order. There is no warrant for assuming that the reservation clause in s. 104 of the Code of 1908 was as contended by counsel for the respondents, "su....